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Mention didn't go as planned

Mention in FMC today, child 15 soon. SRL.

In short my matter was adjourned for three weeks in the FMC as the respondent mother didn't submit her response and the FM thought I was wasting his time (IMHO). In short,the child lived with me for nine months to January. The child turns fifteen in June. The child didn't return form Xmas holidays as planned and contact since has been non existent. The mother has refused to enter into mediation (even though she started the process). O_o

I'm not sure how the next Mention will go. I felt I wasn't really given any opportunity to speak, however, I did know that I couldn't give evidence from the bar table. The FM wants to hear from the child but I don't know how or whenthat will happen or whether I'll get a copy of what the child has written. I'm questioning myself whether I wrote enough in the affidavit, bagged out the respondent too much in the affidavit or whether I should have referred to the FLA within the affidavit to state my position.

In all honesty, I dont think the FM really read my material.:(

I've got three weeks to prepare (again). As the child will be 15, I know I'm on a hiding to nothing. However, I think it's in the best interest of the child that a male role model should guide him through adolescent life, even if it only is part time. Any tipsfor the next Mention would be appreciated.

Kind regards,Soccerdad:)
I doubt anyone can force a 15 year old to spend time with someone it does not want to.

 I'd hate to be the barer of bad news, at this age there is very little the courts can do!

The FM suggesting that you are wasting your time needs deep consideration!

I am going back for a second mention as my former partner did not turn up at the first in April, on, Friday 29th of May. I have 4 kids, one is a 14 year old and old enough to make his own decision. The FMC will definitely take his needs into account, so yeah as Monaro said it may be tough going for you. Still if you feel you have to try as I do don't expect the impossible or improbable. Remember that your son's wishes will carry weight in a hearing as well.

He may not understand the complexities of the FMC or what you are doing, but, if things don't pan out as you would like (remembering it is all about the best interests of the child). When he comes back into your life you can show him exactly what you did when and if the questions arise.
You could obtain orders that provide spends time with however the Courts have no powers to order a 15 year old to have contact.

Without knowing the details of your case it is difficult to suggest any tips or strategies for the next mention.


SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
SRL-Resources said
You could obtain orders that provide spends time with however the Courts have no powers to order a 15 year old to have contact.
Can you elaborate on the sections of the Act that might relate to this statement that the Courts have no powers to order a 15 year old to have contact, or provide more practical advice from your experiences?


Executive Secretary - Shared Parenting Council of Australia
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Secretary SPCA said
SRL-Resources said
You could obtain orders that provide spends time with however the Courts have no powers to order a 15 year old to have contact.
Can you elaborate on the sections of the Act that might relate to this statement that the Courts have no powers to order a 15 year old to have contact, or provide more practical advice from your experiences?


 
This statement by SRL Resources comes from practical experience. The court is UNWILLING to make orders for a child to spend time with another parent, if it seems likely that the child will run away to join the other parent. Age seems to be the key area that a judge/FM look at, as well as maturity. We have often heard a Judge/FM allow a parent to seek orders for a 14/15/16 year old to be made to visit a parent, but a warning has always been given, that at that age, it does not matter what they order( if willing to) THE CHILD WILL/COULD JUST RUN AWAY. They will not force a child to spend time with another parent under these conditions. And yes, it is open to abuse by a very determined parent.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
In the context and age of the child in this topic almost 15 years, The Family Courts can make childrens orders between two adults normally parent A and Parent B which set out the arrangements of time between the two parents. The lives with parent is legally obligated to facilitate and encourage the contact. However the orders are not made between a child (a minor) and the Court therefore the Court has no ability to *enforce if the child refuses contact and the lives with parent has facilitated and encouraged contact. (we could go down the route that the child is actually a third party and a minor and not bound by the orders)

*If a Court adopts the VERY UNLIKELY process of trying to enforce contact it will be handed to another agency such as the Childrens Court or DOCS.

There are many topics on this site dealing with At what age can a child decide. At 14 years a child can leave home and receive benefits and live on the streets, a sort of semi-adult. At best a child of that age might have an order made on a parent to try to encourage contact but not with the parent accruing  some demerit if the contact does not occur.

There is a great deal of case law on this subject in the forums.

SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
Can children decide to relocate and to what school they want to attend at ages 12 & 14? Is there any case law about their ability to make such decisions?
SRL-Resources said
*If a Court adopts the VERY UNLIKELY process of trying to enforce contact it will be handed to another agency such as the Childrens Court or DOCS.

That may be the case, even the Children's Court have their hands tied in such circumstances - what do they do, Jail the Children? should think not!

Of course we all know DoCs history, they are more of a hinderence than anything, a portal to the Children's Court.

The point being that the other parent encourages and facilitates contact, which is not happening and I know the reason why (it's all about the cash). That aside, Section 60CC is not being adhered to by the other parent and that's what I'm holding my argument on…Best interest of the child and facilitate contact with the other parent. If the FM goes for this, at least I have a bit of a moral victory whether the child co-operates or not.

I'm not a Disney dad, far from it. There are rules in my house, no rules in hers. When he lived with me, he obeyed. If I was to pick a charater to decsribe me as a dad, it would be the Hulk…"Don't make me angry, you wouldn't like me when I'm angry." I'm a marshmallow otherwise.

Power of Court to Make Orders

Can the Courts make orders in relation to a teenager? Definitely!

Will the courts make "spend time with" orders in relation to teenagers? No!, usually only that the teenager can make up their own mind. Sometimes the Courts will make orders that a parent actively encourage a teenager to spend time with the other parent.

At the risk of being told I am wrong, I can only recall one significant case in recent years where specific orders were made relating to a teenager (16 if I recall) spending time with the other parent. That was in the Elspeth & Peter saga. That case contain some very specific and narrow issues.

As other poster have said, the Courts willingness to make orders relating to a teenager is dependent on the teenagers expressed opinon (to the Family Report writer or ICL) and any assessment of the teenagers maturity.

For me - Shared Parenting is a Reality - Maybe it can be for you too!
soccerdad said
In short my matter was adjourned for three weeks in the FMC as the respondent mother didn't submit her response and the FM thought I was wasting his time (IMHO). In short,the child lived with me for nine months to January. The child turns fifteen in June. The child didn't return form Xmas holidays as planned and contact since has been non existent. The mother has refused to enter into mediation (even though she started the process). O_o

I'm not sure how the next Mention will go. I felt I wasn't really given any opportunity to speak, however, I did know that I couldn't give evidence from the bar table. The FM wants to hear from the child but I don't know how or whenthat will happen or whether I'll get a copy of what the child has written. I'm questioning myself whether I wrote enough in the affidavit, bagged out the respondent too much in the affidavit or whether I should have referred to the FLA within the affidavit to state my position.

In all honesty, I dont think the FM really read my material.:(

I've got three weeks to prepare (again). As the child will be 15, I know I'm on a hiding to nothing. However, I think it's in the best interest of the child that a male role model should guide him through adolescent life, even if it only is part time. Any tipsfor the next Mention would be appreciated.

Kind regards,Soccerdad:)

The FM is not going to go wast court time hearing a matter if the matter is not ready for hearing - i.e. no response by the mother.

When you say that the child didn't return from Xmas holidays - does this mean that Orders have been contravened?

4MYDAUGHTER
There are no orders in place. I was of the understanding he was coming back home to me after the holidays.
SRL-Resources said
In the context and age of the child in this topic almost 15 years, The Family Courts can make childrens orders between two adults normally parent A and Parent B which set out the arrangements of time between the two parents. The lives with parent is legally obligated to facilitate and encourage the contact. However the orders are not made between a child (a minor) and the Court therefore the Court has no ability to *enforce if the child refuses contact and the lives with parent has facilitated and encouraged contact. (we could go down the route that the child is actually a third party and a minor and not bound by the orders)

*If a Court adopts the VERY UNLIKELY process of trying to enforce contact it will be handed to another agency such as the Childrens Court or DOCS.

There are many topics on this site dealing with At what age can a child decide. At 14 years a child can leave home and receive benefits and live on the streets, a sort of semi-adult. At best a child of that age might have an order made on a parent to try to encourage contact but not with the parent accruing  some demerit if the contact does not occur.

There is a great deal of case law on this subject in the forums.


At 13 years of age all of my children were given the opportunity to make their own decision of where they will live with no court orders except that the children will see the Non custodial parent when they both agree.

Child 1 was never returned after a holiday and by the time it was seen in court he expressed his wish to live with his Father. Child 2 and 3 went and spent time with their father then started running away so their wishes were also expressed that they did not have forced contact with the Father.

The Judge made it quite clear that she could not make any orders that would put any of the children in danger which unfortunately child 1 would run away when he came to visit me and the other two who learnt that running away would get their own way also ran.

I felt that the judge found it very difficult to make orders when the children were basically making their own decisions. Child 1 is now 15 and I can see that he just wants to see his friends and do his homework. The children did have a ICL and a family report was done as well as a court psychologist appointed which all said that the kids could decide.

Maturity does play a big role and my children obviously could express themselves and their wishes. In time I will encourage them to see their dad and hope he too encourages child 1 to see me and hopefully now all the court stuff is over they may want a relationship with their dad.
It will be interesting for soccerdad to read what the son has to say, and for the Court to hear the dads perception as to interpreting that material,. Perhaps the child prefers his mothers household, or prefers a particular school, or perhaps mum has bought him a new play station that he has becopme addicted to and has no time for anything else, perhaps he has a girlfriend he met on holidays, perhaps mum said something to him that caused the situation? Could be anything. If I was the dad I would be writing to the son and begging him not to altogether abandon  his father. Writing before the case may change the childs stance and speed up the matter, and waiting until afterwards or at the hearing will further discovering what is causing the stalemate withiin the family relationships. I am sure there are many more advantages to be thought out.

DOCS involvements are for criminal handling of the child, and also for repeat reckless actions and/or repeat intentional actions that damage children, I would have thought

Perhaps one parent has become too rigid in their desires too early in the piece, which seems normal to myself but would make one less likely to keep attending mediation.
Monteverdi said
This statement by SRL Resources comes from practical experience. The court is UNWILLING to make orders for a child to spend time with another parent, if it seems likely that the child will run away to join the other parent. Age seems to be the key area that a judge/FM look at, as well as maturity.

Too right, this proves FLWG is the best place to come for practical advice.
Of interest is that new subsection 62G(3A) provides that a family consultant or welfare officer, who is directed to give the court a report on a matter must ascertain the views of the child in relation to the matter and include the views of the child in the report. New subsection 62G(3B) provides that subsection 62G(3A) does not apply if it would be inappropriate to do so because of the childs age or maturity or some other special circumstance. For example, if the child has a disability which makes them unable to express a view, or is a baby.

The intention is to ensure that, where possible, the court is informed about the views of the child on matters to which a parenting order relates. The childs views are a factor a court is to consider when determining what is in the childs best interests under section 60CC. This implements recommendation 42 of the LACA Committee.

The note following this provision makes clear that the requirement to seek the views of a child is subject to section 68H which makes clear that a child cannot be forced to give a view.

Paragraph 65DAA(5)(d) ensures that there is a child focus to the decision and ensures that account is taken of the childs age, views (including factors that may have influenced those views) and the general benefit to the child of this type of arrangement.

New subsection 68L(5) clarifies that the court may make an order under paragraph 68L(2)(b) for the purpose of allowing the lawyer who is to represent the childs interests to find out what the childs views are on the matters to which the proceedings relate. The purpose of this section is to clarify that the independent childrens lawyer can seek the views of the child, despite the requirement that the independent childrens lawyer come to their own conclusion on the available material about what is in the best interests of the child.

Subsection 68L(5) does not limit paragraph 68L(2)(b) and the court may make other orders under that paragraph as it considers appropriate. The note following subsection 68L(5) provides guidance to readers by referring
them to section 60CE. That section states that a child cannot be required to express his or her views in relation to any matter. However, except for exceptional circumstances, it is expected that independent childrens lawyers will have contact with children to discuss their views.

In accordance with subsection 68L(6), subsection 68L(5) will not apply where complying with that subsection would be inappropriate because of the childs age or maturity or some other special circumstance. For example, although the child may have firm views on which parent the child would like to live with, the child may have special needs that are best served by living with the other parent.

There are also specific references to Aboriginal and Torres Strait Islander children as per the new subparagraph 60B(2)(e) which inserts a new principle that every child has a right to enjoy his or her culture. New subsection 60B(3) expands this principle, which underlies the objects of Part VII, in relation to Aboriginal and Torres Strait Islander children by identifying matters included in the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture. New subsection 60B(3) clarifies that the right includes the right of an Aboriginal or Torres Strait Islander child to maintain a connection with his or her culture and to have the support, opportunity and encouragement necessary to develop a positive appreciation of that culture and to explore the full extent of that culture, consistent with the childs age and developmental level and the childs views.

In respect to a specific age well there is no specific age mentioned. As children get older they start to make decisions about where they are going and with what friends they want to play with this weekend or that and or what sports they are in and what party they will go to or wont, so as they get older a lot of the decisions are just not able to be legislated for. What is problematic is where one parent alienates the other and we have seen recent judgements that send a clear message.

What is very clear is that every case is unique and the Judicial officers have a lot of discretion to take or not take views. I think the Act was improved somewhat on the taking up of childrens views as I sat in on one hearing in 2004 where a family court judge just said "I am not even going to hear the child's view at all" and I have not heard that since the new Act was delivered.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
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